26-ORD-119 – Leah Kottmyer/Newport Police Department

Opinion Content:

March 24, 2026

In re: Leah Kottmyer/Newport Police Department

Summary: The Newport Police Department (“the Department”) did not
violate the Open Records Act (“the Act”) when it could not provide
photographs that no longer exist. However, the Department violated the
Act when it denied a request for a property and evidence tracking log
under KRS 61.878(1)(i) and (j).

Open Records Decision

Leah Kottmyer (“the Appellant”) submitted a request to the Department for
“the evidence/property documentation and any related records” from its investigation
of a death that occurred on April 5, 2025. The Appellant noted that “the police
narrative indicates items were ‘collected as evidence and stored in property,’” and
therefore, she requested “property/evidence inventory sheets, evidence submission
forms, evidence receipts, property tags, itemized property logs, and or evidence
management system printouts,” “[c]hain-of-custody documentation for any items
collected,” and “[a]ny photographs of the medications/containers/pill(s) collected from
the scene.”

In response, the Department stated that “[a]fter a review conducted in
accordance with [its] records retention policies, [the Department] no longer
maintain[s] any photographs related to the property referenced in [the] request.” The
Department did not state whether it maintained any photographs of the scene of the
incident. With regard to the property tracking records requested, the Department
responded, “While the agency maintains internal property/evidence tracking log [sic],
that document is an internal administrative record created solely for internal
tracking and control purposes. It is not a public record subject to disclosure under the
[Act], including but not limited to KRS 61.878(1)(i) and (j), which protect preliminary
and internal records.” Therefore, the Department denied the Appellant’s request for
the tracking log. This appeal followed.

On appeal, the Department asserts it provided “[a]ll of what remained in
existence” to the Appellant 1 “along with further explanation as to the remainder.” A
statement from a public agency that it has disclosed all responsive records is
“tantamount to an affirmative statement that the remaining records requested do not
exist.” 04-ORD-040. More specifically, the Department states the evidence
photographs were “disposed of in accordance” with “the Kentucky records retention
schedule regarding documents” because the “matter was determined not to be
criminal in nature and upon expiration of the 100 days under the schedule the records
were no longer maintained.”

The Appellant claims the Department “should be required to provide” the
“retention schedule entry and record series relied upon,” “destruction/disposition
logs,” and other specific information regarding the disposal of the photographs.
However, once a public states affirmatively that records no longer exist, the burden
shifts to the requester to make a prima facie case that the records do or should exist.
See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005).
If the requester is able to make a prima facie case that the records should still exist,
then the agency must provide “a written explanation for their nonexistence.” Eplion
v. Burchett, 354 S.W.3d 598, 603 (Ky. App. 2011) (quoting 10-ORD-078). And, if the
requester has made a prima facie case, “the agency may also be called upon to prove
that its search was adequate.” City of Fort Thomas v. Cincinnati Enquirer, 406
S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling, 172 S.W.3d at 341).

Here, however, the Appellant has provided no evidence or authority to make
a prima facie case that the photographs still exist. See, e.g., 23-ORD-090 (finding no
violation of the Act when an agency stated that a record “was disposed of” and the
requester did “not cite to any authority, such as the [agency’s] record retention
schedule, that would require the [agency] to retain and possess the record”).
Accordingly, the Department did not violate the Act when it could not provide records
that no longer exist.

Regarding the “property/evidence tracking log,” a public agency denying
inspection of public records must “include a statement of the specific exception
authorizing the withholding of the record and a brief explanation of how the exception
applies to the record withheld.” KRS 61.880(1). The agency must “provide particular
and detailed information,” not merely a “limited and perfunctory response.”
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. 1996). “The agency’s explanation must
be detailed enough to permit [a reviewing] court to assess its claim and the opposing
party to challenge it.” Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81
(Ky. 2013). As this Office has recognized, KRS 61.878(1)(i) and (j) are two separate

1 The record on appeal is unclear as to whether the Department provided any records to the
Appellant in response to the request at issue, or whether it is referring to records it provided in
response to a previous request.

exemptions, and public agencies must explain how each exemption applies to the
withheld records if an agency chooses to rely on both provisions. See, e.g., 21-ORD-
168; 21-ORD-169. Here, however, the Department’s response was “limited and
perfunctory” because it did not explain how either of the two claimed exemptions
applied to the tracking log. Therefore, the Department violated KRS 61.880(1).

Under KRS 61.878(1)(i), “[p]reliminary drafts, notes, [and] correspondence
with private individuals, other than correspondence which is intended to give notice
of final action of a public agency,” are exempt from disclosure. KRS 61.878(1)(j)
exempts from disclosure “[p]reliminary recommendations, and preliminary
memoranda in which opinions are expressed or policies formulated or recommended.”
However, “[a]n agency which would withhold records bears the burden of proving
their exempt status.” Ky. Bd. of Exam’rs of Psychologists v. Courier–Journal &
Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).

Here, the Department has not explained how the tracking log can be
characterized as a preliminary draft, a note, correspondence with private individuals,
a preliminary recommendation, or a preliminary memorandum “in which opinions
are expressed or policies formulated or recommended.” The Department merely
stated the log “is an internal administrative record created solely for internal
tracking and control purposes.” That description, without more, is insufficient to
establish that it is not a public record subject to disclosure. See KRS 61.870(2)
(“‘Public record’ means all books, papers, maps, photographs, cards, tapes, discs,
diskettes, recordings, software, or other documentation regardless of physical form or
characteristics, which are prepared, owned, used, in the possession of or retained by
a public agency.”). Therefore, the Department violated the Act when it withheld the
“property/evidence tracking log.” 2

A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to [email protected].

2 The Appellant lists other categories of records she claims “remain in dispute,” including
“[i]ncident/offense report and all supplemental reports,” “[o]fficer narrative notes and field
documentation,” “[w]itness statements,” “[b]ody-worn and dash camera recordings,” and
“documentation reflecting a suspected overdose determination.” However, these records are outside
the scope of the request at issue in this appeal.

Russell Coleman
Attorney General

/s/ James M. Herrick
James M. Herrick
Assistant Attorney General

Leah Kottmyer
Derick Dieters
Dan Braun, Esq.
Christopher Fangman, Chief
Tiffany Meyers, Clerk